Delhi High Court
Sukhpal Singh & Anr. vs Satbir Singh & Anr. on 17 September, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) No. 952/2011
Date of Decision: 17.09.2012
SUKHPAL SINGH & ANR. ......Petitioners
Through: Mr. Sunil Malhotra, Adv.
Versus
SATBIR SINGH & ANR. ......Respondents
Through: Ms. Shweta, Proxy Counsel.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This is a petition under Article 227 of the Constitution of India
against the order dated 12.07.2011 of the Ld. District Judge-cum-ASJ
Delhi, wherein an appeal preferred by the respondents, was allowed and
the eviction order passed by the Ld. Rent Controller, Delhi vide order
dated 25.03.2008, was set aside.
2. The Petitioners are the owners/landlords of the property No.
2278/79, Gurdwara Road, Karol Bagh, New Delhi (hereinafter referred to
as "the suit premises"). Shri Mahinder Singh, father of the Respondent
No.1 was a tenant in respect of one shop situated in the suit premises. Shri
Mahinder Singh died leaving behind two sons namely Shri Kanwaljeet
Singh and Satbir Singh. The petitioners alleged that after death of
Kanwaljeet, respondent No.1 alone is the tenant of demised premises. On
16.05.2005 the petitioner filed an eviction petition u/s 14(1) (b) of the
Delhi Rent Control Act (hereinafter referred to as "the Act"). It was
submitted in this petition that the respondent no.1 had sublet, assigned or
otherwise parted with possession of the demised premises to the present
Respondent no.2, M/s Meetasu Travels Pvt. Ltd., without obtaining the
consent of the petitioners and on this ground, the respondents are liable to
be evicted. The Ld. RC passed the eviction order on 25.03.2008 on the
ground that since out of the total share capital of Respondent No 2, which
was 3 lakh, 2,50,000 shares were held by one Mr. Jasbir Singh Anand and
his wife, and the rest were held by the wife and sons of Mr. Kanwaljeet
Singh, it was clear that the controlling interest of the company was with
Jasbir Singh Anand who were outsiders vis a vis tenants. Thus, the RC
concluded that this was a case of parting possession, and so eviction order
was passed. The respondents filed an appeal on 02.04.2008. The District
Judge allowed the appeal on the ground that the number of shares is
irrelevant for deciding whether a person has a controlling interest or not.
The District Judge relied on the judgment in "M/s Madras Bangalore
Transport Co. (West) vs. Inder Singh, AIR 1986 SC 1564" wherein it
was held that if a firm is converted into a company, it does not amount to
subletting. He also referred to the judgment cited by the appellants
(respondents herein) of "Vishwanath vs. Chaman Lal Khanna, 1975
RCJ 514" in which it was held that a sole proprietor converting into Pvt.
Ltd., in which he had controlling interest, would not amount to sub-
letting. The Ld. District Judge also made the observation that since the
heirs of Kanwaljeet Singh have not been joined as a party, it is fatal to the
eviction petition. This order has been challenged in the present petition.
3. The contention of the petitioners counsel that since the majority of
shares of respondent no.2 at the time of filing of the eviction petition was
held by Jasbir Singh Anand and his wife, they had controlling interest in
the company, and thus the respondents had sub-let or parted possession, is
untenable. Even though the majority shares were held by an outsider, i.e.
Jasbir Singh Anand, still that does not amount to sub-letting as the wife
and sons of Kanwaljeet Singh still had shares in the company showing
that the original tenants are in legal possession of the suit premises. The
wife and sons of Kanwaljeet Singh continue to be the tenants of the suit
premises after the death of Mahinder Singh, since tenancy was inherited
by them. Even though the respondent no.1 is said to have shifted his
residence to K-12, Rajouri Garden. New Delhi, the LRs of Kanwaljeet
Singh continue to have legal possession of the suit premises. This Court in
"Bine Chand Jain vs. Keshav Chander Chada & Ors, 34 (1988) DLT
12" held that:-
"(6)........The rights of such tenants (joint tenants)
are not personal rights but they are heritable rights.
On the death of either of such persons his rights are
succeeded by his legal heirs and they do not devolve
on the surviving tenant by survivorship."
Further, in the case of "Ram Kr. & Ors vs. Rajender Tahkur & Ors, 1986
(10) DRJ 33", this Court held that:-
"(3) The three expressions "sublet", "assigned" or
"otherwise parted with possession" used in clause (b)
of the proviso, no doubt, deal with different concepts
but in all the three cases there must be a transfer of
the legal possession of the whole or part of the
demised premises to person or persons other than the
tenant. A tenant, who retains the legal possession of
the whole of the premises with him, cannot be said to
have sub let, as signed or otherwise parted with
possession of the whole or part of the premises."
4. It is important to note that the onus of proving sub-tenancy lies on
the landlord. The Supreme Court in "Jagan Nath vs. Chander Bhan, AIR
1988 SC 1362", enunciated the principles whereby once the landlord has
proved that a particular portion of the demised premises has been given in
exclusive possession to a stranger, then the onus shifts upon the tenant.
Here that burden of proof has not been discharged by the petitioners. The
exclusive possession by a stranger has not been proved by the petitioners.
In addition to this, the rent was being paid by the tenants as usual, and
Jasbir Singh Anand or his wife never paid any rent to Respondent no. 1 or
to the LRs of Kanwaljeet Singh.
5. In light of the above discussion, I am of the view that this case is
not one of sub-letting or parting of possession. I see no infirmity or
illegality in the order of the District Judge dated 12.07.2011. This petition
is hereby dismissed.
M.L. MEHTA, J.
SEPTEMBER 17, 2012
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